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State v. Thomas

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 28, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
JERMAIN THOMAS DEFENDANT-APPELLANT

         Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-575711-A

          Russell S. Bensing ATTORNEY FOR APPELLANT

          Michael C. O'Malley Cuyahoga County Prosecutor, Brad Meyer ATTORNEYS FOR APPELLEE

          BEFORE: E.A. Gallagher, J., Keough, A.J., and Kilbane, J.

          JOURNAL ENTRY AND OPINION

          EILEEN A. GALLAGHER, J.:

         {¶1} Defendant-appellant Jermain Thomas[1] appeals from his resentencing in the Cuyahoga County Court of Common Pleas after remand based on the Ohio Supreme Court's decision State v Thomas, 148 Ohio St.3d 248, 2016-Ohio-5567, 70 N.E.3d 496 Thomas contends that his maximum, concurrent sentences on rape and kidnapping charges should be vacated or modified because the trial court (1) failed to comply with R.C. 2929.11 and 2929.12 and (2) imposed a harsher sentence on remand after Thomas' successful appeal. For the reasons that follow, we vacate his sentences.

         Factual and Procedural Background

         {¶2} In 2013, a Cuyahoga County Grand Jury indicted Thomas on three counts of rape and one count of kidnapping, with accompanying one-year and three-year firearm specifications, based on conduct that allegedly occurred in 1993.

         {¶3} In State v. Thomas, 8th Dist. Cuyahoga No. 101202, 2015-Ohio-415 ("Thomas I "), this court described the incident giving rise to the charges against Thomas and the reasons for the 20-year delay in prosecuting Thomas as follows:

The victim, A.W., testified that on the evening of June 28, 1993, she left her house on Dickens Avenue in Cleveland to walk to her cousin's house on Manor Avenue, one street over. In the darkness, a man approached her and forced her to walk south on East 97th Street toward Hilgert Drive. The man stayed close behind her holding something into her back that she believed was a gun. They walked up a driveway of a house next to an empty field where the man forced A.W. onto her knees and vaginally raped her. Although it was dark, there was sufficient light for A.W. to see that the man was holding a gun. There were no known witnesses of the crime.

After the rape, A.W. ran home to use the bathroom before running to a neighbor's house where a friend called the police. Later that evening she went by ambulance to St. Luke's Hospital where Dr. Cynthia Boes ("Dr. Boes") collected evidence of the rape in a rape kit. A.W. described the rape in detail to Dr. Boes, who wrote a narrative account of the incident in A.W.'s chart. A few days after the rape, Officer Debra Simmons ("Simmons") of the Cleveland Police Department met with A.W. in her home to investigate the rape. A.W. was unable to provide a detailed description of the suspect because it was dark, and she did not look at his face at any time during the incident. Without any leads, the case went cold.

In 2006, scientists at the Ohio Bureau of Criminal Investigation ("BCI") tested the evidence in A.W.'s rape kit and found DNA that matched Thomas's DNA. A detective contacted A.W. and informed her that BCI had identified a suspect with DNA evidence from the rape kit. A.W. informed the detective that she did not want to prosecute him. She explained she "didn't want to relive that moment again." Accordingly, A.W. signed a "Waiver of Prosecution, " and the detective once again closed the investigation.
In 2013, an investigator from the Cuyahoga County Prosecutor's Office notified A.W. that the prosecutor's office was proceeding with the prosecution of the suspect in her rape case. The investigator discussed the incident with A.W. and presented a photograph lineup of suspects. A.W. was unable to identify the perpetrator from the lineup but agreed to assist in the prosecution.

Id. at ¶ 3-6.

         {¶4} The case proceeded to a jury trial. The state dismissed two of the rape counts and the one-year firearm specifications on the remaining counts. In February 2014, the jury found Thomas guilty of one count of rape, one count of kidnapping and the related three-year firearm specifications. Applying the sentencing law in effect when the offenses occurred in 1993, the trial court sentenced Thomas to concurrent indefinite prison terms of 8 to 25 years on the rape and kidnapping ...


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